Bush’s War Crimes Cover-up

December 5, 2006

They are the best-trained, most vicious killers on the face of the earth.
—former defense secretary Donald Rumsfeld, describing the detainees at Guantánamo, with whose interrogation techniques he was personally involved, CNN, March 7, 2006

Most of these guys at Guantánamo weren’t fighting us. —former Guantánamo deputy commander General Lucenti, The Washington Post, October 6, 2004

The U.S. military called no witnesses, withheld evidence from detainees . . . as it determined that hundreds of men detained at Guantánamo were “enemy combatants.” —Seton Hall Law School report on Guantánamo, November 12, 2006

The Pentagon will submit for congressional approval a $125 million plan to build a compound at Guantánamo to house, among others, terrorism suspects to be tried there, in the first American war-crimes trials since World War II. Many of the prisoners already at Guantánamo have been locked up there since 2002.

In view of the greatly expanded definition of “enemy combatants” in the Military Commissions Act of 2006, which George W. Bush signed in October, the Pentagon would be well advised to greatly increase the number of cells in the new compound. Under the new law, the president can designate as “an enemy combatant” any noncitizen picked up anywhere in the world, even permanent legal alien residents here.

These newly imprisoned “enemy combatants” will include not only those engaged in direct hostilities against the United States, but also loosely defined “supporters” of the enemy.

Passionately arguing against this legislation on the Senate floor, Democratic Senator Patrick Leahy of Vermont claimed, “This provision would perpetuate the indefinite detention of hundreds of individuals . . . without any recourse to justice whatever. . . . This is un-American!”

In June 2006, the Supreme Court (Hamdan v. Rumsfeld) clearly told the president that American treatment of prisoners, and not only at Guantánamo, had violated Common Article 3 of the Geneva Conventions, to which this country is a signatory. But the conditions of their confinement, as well, contradict our own War Crimes Act of 1996 because of “grave breaches” of the Geneva Conventions in our prisons at Guantánamo and elsewhere. Senator Leahy got it right. Our interrogation of detainees has been un-American since 2002, and the harm is now going to be compounded under the new Military Commissions Act.

In the Hamdan case, the Supreme Court told President Bush and his fellow un-Americans in the administration that the sentences of all our prisoners, including “unlawful enemy combatants,” must be handed down “by a regularly constituted court” that “provides all the judicial guarantees recognized as indispensable by civilized peoples.”

Moreover, ruled the Supreme Court, Common Article 3 prohibits “at any time and in any place whatsoever . . . violence to life and person . . . murder of all kinds, mutilation, cruel treatment and torture, and outrages upon personal dignity—in particular, humiliating and degrading treatment.”

This clause in the Geneva Conventions actually describes much of what has been going on in Guantánamo and at our prisons in Iraq and Afghanistan—and, according to survivors, within the CIA’s secret prisons around the world.

The Military Commissions Act of 2006 further defies the Supreme Court’s June decision by stripping all “enemy combatants” held in our prisons of habeas corpus rights to protest their conditions of confinement. And those conditions—as documented by Human Rights Watch, Amnesty International, Human Rights First, and often this column—are allowed to continue under the Military Commissions Act, swallowing up the increased numbers of enemy combatants it can haul into Guantánamo, and other warehouses, for indefinite detentions.

This brazenly un-American law will get to the Supreme Court, where I expect the justices will be shown a devastating new report, based on Defense Department data, that reveals the persistent, systemic lawlessness of the Bush administration’s treatment of prisoners at Guantánamo all these years. Compiled and written by professor Mark Denbeaux of the Seton Hall University School of Law; his son Joshua Denbeaux, counsel to two Guantánamo detainees; and law students at Seton Hall, this detailed account of the cover-up of war crimes at Guantánamo by this administration is titled “No-Hearing Hearings.” It provides a thorough analysis of the so-called “combatant status review tribunals” at Guantánamo, the means by which the government determines whether detainees can be prosecuted for war crimes.

Next week, I’ll take you deeper inside the Seton Hall report and elaborate on what the new Democratic leadership should—and must—do about its revelations to begin to get our international reputation back. But first, a partial summary of how American justice is administered by the White House, the Defense and Justice departments, and a raft of highest-level administration lawyers who justify our war crimes against prisoners so that we can charge our captives with war crimes.

Among the findings in the Seton Hall report:

“The government’s classified evidence [which the prisoner was not allowed to see] was always presumed to be reliable and valid. . . . When considering all the hearings, 89% of the time no evidence was presented on behalf of the detainees. . . . Instead of a lawyer, the detainee was assigned a ‘personal representative’. . . who was not his advocate and whose role, both in theory and practice, was minimal. . . . At the end of the hearing the personal representative failed to exercise his right to comment in 98% of the cases.” (Emphasis added.)

As Andrew Cohen, the Washington Post‘s regular columnist on legal matters, concludes: “If a regular trial court proceeding were this shoddy, this unwilling to perform a truth-seeking function, this unable to achieve a fair process, the judge presiding over it would be impeached.”

But no member of the Bush administration has been charged with war crimes under our law or the Geneva Conventions as a result of these hearings—or anything else since 2002, including the CIA’s “renditions” of suspects to be tortured in other countries. Under the Military Commissions Act, the “renditions” can continue.